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Monday, December 22, 2008

Just Wondering

What would your reaction be if you found out that some law professor had written and published two articles at the same time taking diametrically opposed positions on the same question or issue or set of problems?  In other words, to take a rather simple example, say a prawf decided to write one article all about how the Endangered Species Act was unconstitutional as applied to small populations of animals within a single state under the Commerce Clause and a second article about how the Act was completely constitutional under the Commerce Clause when applied to similar populations of animals.  Then he or she sent the articles off to different sets of law reviews and accepted publication offers for both of the articles.  The articles then came out at roughly the same time.  The articles made no reference to each other.  Would you think the author had acted unethically?  Would you think less of the author?  The arguments?  Why or why not?  (note: I don't plan on doing this myself, but I am thinking about having a character in a piece of fiction do it, and I just wonder what people in the academy and elsewhere would say about it).

On an entirely different note, I have a piece up at the Beacon Press blog Beacon Broadside about how I hate it when people send holiday cards with pictures of their kids on them but no pictures of themselves.  The original title was: "I Know Your Kids are Cute, But What Do You Look Like?"

Posted by Jay Wexler on December 22, 2008 at 02:43 PM in Deliberation and voices | Permalink


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Seems stupid, but not unethical. I would think the author was a strange person, but not much else.

Posted by: andy | Dec 22, 2008 3:34:38 PM

I'm not sure it's possible to answer the question without you first telling us *why* the person might do this. Is it some sort of a test as to which argument will appeal to law reviews, and therefore will "place higher"? Or is the professor of two minds of the issue?

Posted by: Orin Kerr | Dec 22, 2008 4:17:10 PM

Jay, the answer to the original title of your other post, at least in my case, is "Considerably less cute than my kid."

Posted by: Bruce Boyden | Dec 22, 2008 5:07:36 PM

An excellent idea, Jay. Shades of, well, John Shade, no?

Posted by: Vladimir | Dec 22, 2008 6:24:24 PM

To address your question, Orin, we might assume that the author either (1) is completely torn on the question and thinks that authoring two articles is the best way to articulate his or her views; and/or (2) is doing it as sort of performance art, perhaps to express his frustration with the question or perhaps to express certain larger feelings about the absurdity or fruitlessness (or something similar) of scholarship, academia, rationality, or something else. It's not a test of which view will prevail with the law reviews.

Incidentally, my kid is also considerably more cute than me, but I assume that people I know who haven't seen me for a while will be at least mildly interested in seeing how un-cute I am.

Posted by: Jay Wexler | Dec 22, 2008 8:01:32 PM

I'm not an academic, just a former editor...

I think that when an author puts his name to a piece of scholarship, it's an implicit statement that the author actually subscribes to the conclusions stated in the article, for the reasons stated in the analysis part. And as a general matter, I think it's unethical to publish an article where the author doesn't actually subscribe to the article's conclusions. I'm not sure exactly why that is. Scholarship is supposed to be about uncovering some kind of "truth" or advancing the state of knowledge. If the author makes it clear that the conclusions aren't actually his (e.g., 1 "I'm genuinely unsure about this issue, but as an analytical exercise, here's the best argument in support of proposition X," or 2 "Roe v. Wade was clearly wrong, but wouldn't it be fun to explore how its authors might have made better arguments in support of the result," or 3 articles that are obviously meant to be sarcastic or humorous, like A Modest Proposal, even if not all of the audience catches on), then that's probably fine. If not, then the author lets the implicit statement that he subscribes to the conclusions of the article sit there, and that statement seems to be false under your hypothetical, so I'd say that the practice is unethical.

This is different from a lawyer representing a client. There, the implicit statement is "this is the best argument I could make in good faith in support of my client's interests."

Also, 95% of "performance art" is just antisocial behavior by another name.

Posted by: krs | Dec 22, 2008 8:39:55 PM


Thanks for the clarification. It's hard to imagine this, but here's a guess as to what a response might be:

In scenario (2), it would depend on how artfully the author pulls off the performance art. If it's extremely clever, it might work. But if it's just the two competing arguments, it's hard to see how it would be clever. It would just seem sort of lame.

In scenario (1), I would think the professor is a bit of a loon. If you're torn on an issue, the best way to communicate that is to engage the difficulty and explain *why* you're torn: the worst way is to pretend no difficulty exists by writing two separate articles. This isn't moot court, where you write a brief on one side and then another brief on the other.

Posted by: Orin Kerr | Dec 23, 2008 12:39:42 AM

Jay -- How about writing a book, and then publishing a scathing review of it, under a pseudonym? That would be just as cool as your idea.

Posted by: Vladimir | Dec 23, 2008 2:10:11 AM


Have you read Kierkegaard's Either/Or? It's a two volume work in which Kierkegaard takes diametrically opposed positions as two fictional authors, one arguing for a hedonistic lifestyle and the other advocating an ethical life. The work as a whole illustrates the difficulties of trying to figure out how you should live your life. Not exactly the same thing you're talking about, but it is an example, contra Orin's claim above, that it can be an effective way to demonstrate a conflict is to write separate pieces each arguing for one side.

Posted by: D | Dec 23, 2008 12:12:48 PM

Assuming the author uses her or his correct name on each, they will show up together on eCILP (or even earlier if posted to SSRN). As the editors of the various Law Professor Blogs monitor this, the appropriate editor will probably spot the dual publications right off. Looking for stuff to post, the editor will review the articles in her or his blog. As the example subject falls under administrative law (I co-edit the Administrative Law Prof Blog), I would suggest that the author is pointedly demonstrating the vagueness of the jurisprudence in the subject area, or is making fun of legal scholarship generally, or both. The next thing for librarians to do is monitor the citation counts.

Posted by: Ted McClure | Dec 23, 2008 1:32:16 PM

I see this as a very interesting debate, but let me ask this:

- if an author has re-examined a position taken in a prior work, and has determined that the other position than the one originally argued would be the better one, what then? Correct the record? Write the second work and note the first? Because while I see that genuine intellectual development is important (even expected?), doesnt the questioning of a prior assumption merely point out to the tenure committee where your prior articles were weakest? If so, why/can you do it prior to tenure, in a realistic sense?

I suggest you would be crazy to do so, and that is disincentivizing an intellectual process we wish to foster.


(Sorry - reposted here and on the other thread on the same issue)

Posted by: anon | Dec 24, 2008 2:00:15 PM

Recall, though, that the fathers of legal argument in Western culture were the Sophists--the most prominent of whom, Protagoras, taught the principle of "dissoi logoi," in effect that for every argument there is an equal and opposite argument. (Plato makes fun of this in his dialogue of the same name, where Protagoras and Socrates change sides by the end of their discussion.) I would think that lawyers, as Sophists in the *good* sense of teaching debate as the foundation of liberal democracy, should be able to get away with your scenario more than, say, an historian should.

Posted by: Jim A. | Dec 25, 2008 12:32:13 PM

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